TERMS AND CONDITIONS
FOR THE SALE OR USE OF Stoneridge EZ-ELD®,
WEBSITE USE AGREEMENT, SUBSCRIPTION AGREEMENT AND SOFTWARE LICENSE
Last modified: June 8, 2018
THIS DOCUMENT CONTAINS VERY IMPORTANT INFORMATION REGARDING YOUR RIGHTS AND OBLIGATIONS, AS WELL AS CONDITIONS, LIMITATIONS, AND EXCLUSIONS THAT MIGHT APPLY TO YOU. PLEASE READ IT CAREFULLY.
THESE TERMS REQUIRE THE USE OF ARBITRATION TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS.
BY PLACING AN ORDER FOR THE STONERIDGE EZ-ELD® OR OTHER PRODUCTS, SERVICES, AND SOFTWARE LICENSE FROM THIS WEBSITE, YOU AFFIRM THAT YOU ARE OF LEGAL AGE TO ENTER INTO THIS AGREEMENT, AND YOU ACCEPT AND ARE BOUND BY THESE TERMS AND CONDITIONS. YOU AFFIRM THAT IF YOU PLACE AN ORDER ON BEHALF OF AN ORGANIZATION OR COMPANY, YOU HAVE THE LEGAL AUTHORITY TO BIND ANY SUCH ORGANIZATION OR COMPANY TO THESE TERMS.
YOU MAY NOT ORDER OR OBTAIN PRODUCTS OR SERVICES FROM THIS WEBSITE IF YOU (i) DO NOT AGREE TO THESE TERMS, (ii) ARE NOT THE OLDER OF (A) AT LEAST 18 YEARS OF AGE OR (B) LEGAL AGE TO FORM A BINDING CONTRACT WITH STONERIDGE AFTERMARKET, INC., OR (iii) ARE PROHIBITED FROM ACCESSING OR USING THIS WEBSITE OR ANY OF THIS WEBSITE’S CONTENTS, PRODUCTS OR SERVICES BY APPLICABLE LAW.
THE PARTIES INTEND THAT THE SALE OF GOODS PREDOMINATES THE COURSE OF DEALING BETWEEN THE PARTIES AND THAT, THEREFORE, THE UNIFORM COMMERCIAL CODE APPLY TO ALL MATTERS BETWEEN THE PARTIES.
These terms and conditions (these “Terms”) apply to the purchase and sale and/or use of products and services through www.EZ-ELD.com, www.electronic-loggingdevice.com, www.ez-eldsoftware.com and www.ezeldsoftware.com (collectively and individually, the “Site”), including the Software License described below. These Terms are subject to change by STONERIDGE AFTERMARKET, INC. (referred to as “us,” “we,” or “our” as the context may require) without prior written notice at any time, in our sole discretion. Any changes to these Terms will be in effect as of the “Last Updated Date” referenced on the Site. You should review these Terms prior to purchasing any product or services that are available through this Site. Your continued use of this Site after the “Last Updated Date” will constitute your acceptance of and agreement to such changes.
1. Order Acceptance and Cancellation. You agree that your order is an offer to buy, under these Terms, all products and services listed in your order. All orders must be accepted by us or we will not be obligated to sell the products or services to you. We may choose not to accept orders at our sole discretion, even after we send you a confirmation email with your order number and details of the items you have ordered. For the Stoneridge EZ-ELD® to be functional, you must also purchase and maintain a monthly or annual subscription for each Stoneridge EZ-ELD® in use; the subscription and Stoneridge EZ-ELD® shall be an “authorized user” or “user.”
2. Prices and Payment Terms.
(a) All prices, discounts, and promotions posted on this Site are subject to change without notice. The price charged for a product or service will be the price advertised on this Site at the time the order is placed, subject to the terms of any promotions or discounts that may be applicable. The price charged will be clearly stated in your order confirmation email. Price increases will only apply to orders placed after the time of the increase. Posted prices do not include taxes or charges for shipping and handling. All such taxes and charges will be added to your total price, and will be itemized in your shopping cart and in your order confirmation email. We strive to display accurate price information, however we may, on occasion, make inadvertent typographical errors, inaccuracies or omissions related to pricing and availability. We reserve the right to correct any errors, inaccuracies, or omissions at any time and to cancel any orders arising from such occurrences.
(b) Terms of payment are within our sole discretion and, unless otherwise agreed by us in writing, payment must be received by us before our acceptance of an order. As of the date of these Terms, we accept Visa, Mastercard, AMEX, Discover and debit cards for purchases, but may change acceptable forms of payment from time to time without notice to you. You represent and warrant that (i) the credit card information you supply to us is true, correct and complete, (ii) you are duly authorized to use such credit card for the purchase, (iii) charges incurred by you will be honored by your credit card company, and (iv) you agree that you will pay charges incurred by you at the posted prices, including shipping and handling charges and all applicable taxes, if any, regardless of the amount quoted on the Site at the time of your order. Nevertheless, in the event the amount quoted is different from the actual price, we will make commercially reasonable efforts to notify you at the time the charge or within a reasonable time thereof.
(c) Invoices are due and payable within the time stated on your invoice. We may charge a late payment penalty of 1.5% per month on undisputed amounts, or the maximum rate permitted by law, whichever is less. Without waiving any of our other rights or remedies, we may refuse additional orders and suspend any services until all overdue amounts are paid in full.
(d) All services must be paid in advance, provided that payment for a subscription will be due in accordance with the payment terms of the subscription period, as specified on the Site. Some of the Services may consist of an initial period, for which there is a one-time charge, followed by recurring period charges as agreed to by you. By choosing a recurring payment plan, you acknowledge that such Services have an initial and recurring payment feature and you accept responsibility for all recurring charges prior to cancellation. WE MAY SUBMIT PERIODIC CHARGES (E.G., MONTHLY) WITHOUT FURTHER AUTHORIZATION FROM YOU, UNTIL YOU PROVIDE PRIOR NOTICE (RECEIPT OF WHICH IS CONFIRMED BY US) THAT YOU HAVE TERMINATED THIS AUTHORIZATION OR WISH TO CHANGE YOUR PAYMENT METHOD. SUCH NOTICE WILL NOT AFFECT CHARGES SUBMITTED BEFORE WE REASONABLY COULD ACT. TO TERMINATE YOUR AUTHORIZATION OR CHANGE YOUR PAYMENT METHOD, EMAIL EZ.ELD@STONERIDGE.COM.
(e) If you dispute any charges you must let us know within sixty (60) days after the date that we invoice you. All subscription amounts paid are non-refundable and we reserve the right to change our prices in the future.
3. Shipments; Delivery; Title and Risk of Loss.
(a) We will arrange for shipment of the products to you. You will pay all shipping and handling charges.
(b) Title and risk of loss pass to you upon our transfer of the products to the carrier. Shipping and delivery dates are estimates only and cannot be guaranteed. We are not liable for any delays in shipments.
4. Returns and Refunds. Except for warranty items, products are returnable only in strict compliance with the terms set forth in this Section. We will accept a return of the products for a refund of your purchase price, less the original shipping and handling costs and any subscription amounts paid, provided such return is made within 30 days of shipment with valid proof of purchase and provided the product, including the packaging, are returned in their original condition.
To return products, you must call (888) 224-4981 or e-mail our Returns Department at:- email@example.com to obtain a Return Merchandise Authorization (“RMA”) number before shipping your product. No returns of any type will be accepted without an RMA number.
You are responsible for all shipping and handling charges on returned items. You bear the risk of loss or damage during shipment.
All subscription amounts paid in connection with returned products are non-refundable.
Refunds are typically processed within 10 business days of our receipt of your merchandise. Your refund will be credited back to the same payment method used to make the original purchase on the Site.
5. Limited Warranty.
(a) We warrant to you that for a period of 12 months from the date of shipment (“Warranty Period”), the Stoneridge EZ-ELD® will materially conform to our published specifications in effect as of the date of manufacture and be free from material defects in material and workmanship.
(b) We warrant to you that the Services purchased through the Site will materially conform to our published specifications, subject to these Terms.
(c) EXCEPT FOR THE WARRANTIES SET FORTH IN SECTION 5(a) AND SECTION 5(b), WE MAKE NO WARRANTY WHATSOEVER WITH RESPECT TO THE PRODUCTS OR SERVICES PURCHASED THROUGH THE SITE, INCLUDING ANY (i) WARRANTY OF MERCHANTABILITY; OR (ii) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (iii) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.
(d) We shall not be liable for a breach of the warranties set forth in Section 5(a) and Section 5(b) unless: (i) you give written notice of the defective product or services, as the case may be, described in writing in reasonable detail, to us within 10 days of the time when you discover or ought to have discovered the defect; (ii) if applicable, we are given a reasonable opportunity after receiving the notice of breach of the warranty set forth in Section 5(a) to examine the product and you (if we so request) return the product to our place of business at your cost for the examination to take place there; and (iii) we reasonably verify your claim that the product or services are defective. The warranty set in Section 5(a) for the product shall only apply if the product was defective when originally delivered to you or became defective due to a manufacturing or design fault.
(e) We shall not be liable for a breach of the warranty set forth in Section 5(a) or Section 5(b) if: (i) you make any further use of the product after you give such notice; (ii) the defect arises because you failed to follow our oral or written instructions as to the storage, installation, commissioning, use or maintenance of the products; (iii) you alter or repair the product without our prior written consent; or (iv) any of the Warranty Exclusions apply. The “Warranty Exclusions” are any of the following: (u) accident, damage, negligence, abuse or misuse; (v) improper installation or maintenance; (w) abnormal operating conditions; (x) alteration or modification of the goods including removal of factory seals; (y) use for a purpose or an application different to that for which they were designed; and (z) normal wear and tear
(f) Subject to Section 5(d) and Section 5(e) above, with respect to any the product during the Warranty Period, we shall, in our sole discretion, either: (i) repair or replace the product (or the defective part) or (ii) credit or refund the amounts paid by you for the product provided that, if we so request, you shall, at your expense, return the product to us.
(g) Subject to Section 5(d) and Section 5(e) above, with respect to any services subject to a claim under the warranty set forth in Section 5(b), we shall, in our sole discretion, (i) repair or re-perform the applicable services or (ii) credit or refund the amounts paid by you for such services.
(h) THE REMEDIES SET FORTH IN SECTION 5(f) AND SECTION 5(g) SHALL BE AT YOUR SOLE AND EXCLUSIVE REMEDY AND OUR ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTIES SET FORTH IN SECTION 5(a) and SECTION 5(b).
6. Limitation of Liability.
(a) IN NO EVENT SHALL WE BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
(b) IN NO EVENT SHALL OUR AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE AMOUNTS PAID BY YOU FOR THE PRODUCTS AND SERVICES SOLD THROUGH THE SITE.
You are solely responsible for installing the Stoneridge EZ-ELD® in accordance with the instructions. You acknowledge that you are aware that in order to install the Stoneridge EZ-ELD® you may choose to modify your vehicle, and you agree that we are not liable for any cost, expense or damages arising from the installation of the Stoneridge EZ-ELD®. We are not responsible for any damage arising from installation of the Stoneridge EZ-ELD® that does not follow all applicable instructions.
8. Confidential Information.
(a) “Confidential Information” means the data and information concerning the Stoneridge EZ-ELD®, the Stoneridge EZ-ELD® mobile application (the “App”), Documentation, and any proprietary materials or non-public business information (including any pricing information) or technical information that is disclosed to the other party pursuant to these Terms. Confidential Information does not include information which: (i) is or becomes publicly available without fault of the receiving party; (ii) is independently developed by the receiving party without use or access to the disclosing party’s Confidential Information; or (iii) was known to the receiving party prior to its receipt of the Confidential Information from the disclosing party and is not subject to other restrictions on disclosure or use. “Documentation” means any description of the Stoneridge EZ-ELD®, the App or Software’s specifications, features, interface, operating environment, requirements and uses, including any user instructions, installation instructions or other instructional material about the proper operation of the Stoneridge EZ-ELD®, the App or the Software. “Software” means the object code (machine readable) version of the Software owned by us and licensed hereunder, and any ancillary data files, modules, libraries, tutorial or demonstration programs or other components and copies of any of the foregoing or portions thereof.
(b) The receiving party will not use or disclose any Confidential Information of the other party except as expressly permitted herein and will use all reasonable measures to maintain the confidence of all such Confidential Information, which measures will in no event be less than the measures that the receiving party takes to protect its own Confidential Information. Each party shall limit access to the other party’s Confidential Information to those who require such access in order for a party hereunder to perform its rights and obligations in accordance with these Terms. Notwithstanding the foregoing, the receiving party may disclose Confidential Information to the extent required by law or by order of a court or governmental agency of competent jurisdiction; provided, however, that the receiving party shall give the disclosing party prompt notice of the disclosure, and shall use reasonable efforts to cooperate with the disclosing party, at the disclosing party’s expense, if the disclosing party wishes to obtain a protective order or otherwise protect the confidentiality of such Confidential Information.
9. Intellectual Property Use and Ownership. You acknowledge and agree that:
(a) All uses on this Site of the terms “sell,” “sale,” “resell,” “resale,” “purchase,” “price,” and the like mean the purchase or sale of a license. Services marketed on this Site is made available solely for license, not sale, to you and other prospective customers under the terms, conditions and restrictions of the license agreement the display or description of that specific service.
(b) You will comply with all terms and conditions of the specific license agreement for any service you obtain through this Site, including, but not limited to, all confidentiality obligations and restrictions on resale, use, reverse engineering, copying, making, modifying, improving, sublicensing, and transfer of those licensed services.
(c) You will not cause, induce or permit others’ noncompliance with the terms and conditions of the License. You acknowledge that: (i) we own the full right, title and interest in and to the Licensed Property and all related intellectual property rights, including but not limited to patents, copyrights, trademarks, trade names, trade secrets, and any and all alterations, adaptations, modifications, or changes to the Licensed Property or derivative works; and (ii) you shall have no right or interest in or to the Licensed Property or any related intellectual property, including but not limited to patents, copyrights, trademarks, trade names, trade secrets, and any alterations, adaptations, modifications, or changes to the Licensed Property or derivative works. “Licensed Property” means the Site, the Stoneridge EZ-ELD® mobile application, all Software included in the Stoneridge EZ-ELD®, and the Documentation.
(d) Stoneridge Aftermarket, Inc., is and will remain the sole and exclusive owner of all intellectual property rights in and to each service made available on this Site and any related specifications, instructions, documentation or other materials, including, but not limited to, all related copyrights, patents, trademarks and other intellectual property rights, subject only to the limited license granted under the service’s license agreement. You do not and will not have or acquire any ownership of these intellectual property rights in or to the services made available through this Site, or of any intellectual property rights relating to those services.
WEBSITE USE AGREEMENT
Use of Site, the Functions, the Services and the materials provided on Site (collectively, the “Functions”) is contingent upon your acceptance of Terms. If you do not agree to these Terms, you are not permitted to use Site or the Functions.
10. Ownership; License; Restrictions on Use.
The Website will contain, for your use, certain Content (as defined below) derived from and relating to vehicle and driver related data generated by the Stoneridge EZ-ELD®.
You understand and agree that we own all right, title and interest in and to Site, the Functions and the services made available on or through Site, and all information, text, data, databases, graphics, images, logos, Software and other content contained therein, and the collection, design, selection and arrangement thereof (collectively, the “Content”). We hereby grant you a limited, non-exclusive, non-transferable, worldwide license to use Site and the Functions solely for the management of information related to your Stoneridge EZ-ELD®, subject to these Terms. Unauthorized use of Site or the Functions violates copyright, trademark and other laws. Other than as required to facilitate your permissible use, you may not reproduce, perform, create derivative works from, republish, upload, post, retransmit or redistribute in any way whatsoever any Content.
You shall not interfere with or otherwise challenge our rights in Site or the Functions. You shall not remove, modify or alter, or cause or allow to be removed, modified or altered, any copyright or trademark notice, author attribution or other notice placed on or contained within the Content or otherwise on Site or the Functions. Except as expressly authorized by us in writing, in no event shall you reproduce, duplicate, copy, sell, resell or exploit for any commercial purposes, all or any portion of the Content. You shall not use spiders, robots, data mining techniques or other automated devices or programs to catalog, download or otherwise reproduce, store or distribute Content. You shall not take any action to interfere with or disrupt Site or the Functions, circumvent security measures, or attempt to exceed the limited authorization and access granted to you by us.
11. Access to Functions.
Only owners of the Stoneridge EZ-ELD® and such owner’s employees may access or use Site or the Functions. Your acceptance and agreement below is a representation and warranty from you that both you and your employer are authorized by us to access and use Site or the Functions, and that you are the person to whom the user name and password which you use to access Site or the Functions has been issued. You must immediately notify us at firstname.lastname@example.org upon the termination of any employee with access to Site.
Materials and features may be added to or withdrawn from Site or the Functions; and Site or the Functions may be otherwise changed or discontinued at any time without notice.
We may terminate your access to Site or the Functions at any time, for any reason and without advance notice, and in addition to terminating access, we may pursue any other remedy legally available to us if you fail to comply with any of your obligations hereunder.
You agree not to give or make available your username or password or other means to access your account to any unauthorized individuals. If you believe that your password or other means to access your account has been lost or stolen or that someone may attempt to use Site or the Functions without your consent or without your permission, you must notify us immediately by contacting email@example.com.
12. Information Ownership.
Subject to your rights to the information you transmit, the data and information that you access using Site or the Functions, including but not limited to all standards, reports, compositions, analyses, figures and related data is our exclusive property.
13. System Backup
To comply with commercial motor vehicle driver hours of service regulations, 49 CFR 395.1 et seq., you must regularly backup your computer systems and store on separate media all Content, including data from the Stoneridge EZ-ELD®, located thereon. You are responsible for adequately protecting and backing up data or equipment used in connection with or to access Site or the Functions. Subject to force majeure and any other matter outside our control, we will use commercially reasonable efforts to maintain a copy of your records for six months after termination of the Term. Contingent on your being current on all financial obligations to us, you shall have the right to access, retrieve and copy such information during the six-month period. At any time after the expiration of the six-month period, you acknowledge and agree that the Company can delete some or all of the Content, including data from the Stoneridge EZ-ELD®, without notice to you.
This Software License is effective as of the date on which the user accepts these Terms by using the software that is subject to the License (as defined below), and is between Stoneridge Aftermarket, Inc. and you.
14. Grant of License
Grant of License. Subject to the observance by you of these Terms, we hereby grant to you a non-exclusive, perpetual, worldwide, non-transferable, limited license to use the Licensed Property solely for the purpose of utilizing the Stoneridge EZ-ELD® (the “License”). Any use of the Licensed Property not expressly permitted by these Terms is prohibited.
License Restrictions. You agree that you have no right to modify the Software or to permit any third party to do so. You shall not make any derivative works of the Software and ownership of any unauthorized derivative works shall vest in us. You further agree that you shall not permit persons other than its employees to access and use the Licensed Property and shall not use the Licensed Property in breach of any applicable laws, regulations or market conventions.
No License to Other Products. The License granted above is limited to the Licensed Property. It is your responsibility to evaluate whether licenses to other products or software are necessary or desirable in order to utilize the License granted herein. We make no representations or warranties with regard to the necessity of licenses to other products or software.
15. Services and Updates
Services. Except as may otherwise be expressly provided in writing, we are under no obligation to provide any services to you with respect to the Licensed Property (including, without limitation, any installation of the Software, training or maintenance). In the event that we do provide maintenance services for the Software, you acknowledge that any information or data submitted to the Software may be accessed by or shared with our contractors for purposes of performing maintenance on the Software.
Updates. In no event are we required to provide you with any enhancements, updates, or upgrades to the Software. If, however, we furnish to you any enhancements, updates, or upgrades to the Software, your use of such enhancements, updates, or upgrades shall be subject to these Terms.
We own and license the right to use a system for managing records of duty status for commercial vehicle drivers, known as the Stoneridge EZ-ELD®, and is provided through proprietary Software made available via a web portal in combination with the Stoneridge EZ-ELD® (the “Service”). You and any entity on whose behalf you use the Service are referred to as the “Subscriber.”
Your use of the Service is contingent upon your acceptance of the Terms. If you do not agree to these Terms, you are not permitted to use the Service.
16. Service. Subject to payment of the Service Fees and your adherence to these Terms, we hereby grant to you and your authorized users a limited, revocable, non-exclusive, and non-transferable right to access and use the Service during the Term.
17. Use Requirements, Restrictions and Limitations. The following requirements and restrictions govern access to and use of the Service by you and your authorized users:
(a) You shall not reverse engineer, de-compile or disassemble the Service or equipment or attempt to access any data underlying the Service or circumvent the user interface or other technological measures, and shall not modify, access, download, copy, or interfere with the Stoneridge EZ-ELD® or its embedded Software without our express consent.
(b) You shall not rent, sell, assign, lease, or sublicense the Service unless you have an express written agreement with Stoneridge that allows you to do so. Subscriber shall not use the Service to process or administer data on behalf of any third party.
(c) You shall not knowingly access, store, or transmit via the Service any material that:
(i) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or offensive;
(ii) facilitates illegal activity;
(iii) causes damage or injury to any person or property.
(d) You shall not violate or attempt to violate the security of our networks, including: (i) accessing data not intended for you; (ii) accessing a server or account that you are not authorized to access; (iii) attempting to scan or test the vulnerability of a system or network or to breach security or authentication measures; or (iv) attempting to interfere with the availability or functionality of the Service, including by means of submitting a virus, overloading, flooding, spamming, mail bombing, or crashing.
18. Employees, Agents, Independent Contractors. You shall cause each of your employees, agents and independent contractors to comply with the obligations set forth in the Terms.
19. Right to Disable Access. We reserve the right, without liability to you, to disable your or a user’s access to the Service for breach of these Terms or non-payment of subscription dues.
20. General. You shall be solely responsible for: (a) ensuring compatibility of its systems with the Stoneridge EZ-ELD®; (b) downloading and installing the Stoneridge EZ-ELD® mobile application; (c) providing any connections necessary to communicate with the Stoneridge EZ-ELD®; (d) causing each Stoneridge EZ-ELD® to communicate with Site in accordance with all instructions provided; (e) accessing your content on Site regularly and backing it up in hard copy; and (f) at all times maintaining written records in compliance with all applicable laws and regulations, including without limitation 49 CFR 395.1 et seq.
21. Content. You are solely responsible for the creation, control, and all other aspects of content transmitted via the Service by you and your users. You represent and warrant that you own or have obtained all authorizations, permissions, rights and equipment required to use and transmit content via the Service.
22. Delivery of Service. We shall not be liable for any delay or failure to perform resulting from your or your authorized user’s failure to timely provide any information, content or other deliverables necessary to provide the Service.
23. Lawful Purposes. You will use the Service only for lawful purposes and in accordance with these Terms. You shall comply with all applicable laws and regulations when using the Service, including without limitation, compliance with applicable international export and privacy laws and other laws regarding the transfer or transmission of data.
24. Unauthorized Use. You are responsible for, and shall pay any applicable Service Fees associated with, any unauthorized use of your account.
25. Use at Own Risk. You acknowledge and agree that you alone are responsible for complying with commercial motor vehicle driver hours of service regulations, 49 CFR 395.1 et seq. You acknowledge and agree that use of the Service, including without limitation the Stoneridge EZ-ELD® and related hardware and software, is fully at your risk.
26. No Harmful Content. You represent and warrant to us that neither you nor your users will knowingly transmit via the Service any content containing any program, routine or device designed to delete, disable, deactivate, interfere with or otherwise harm any Software, program, data, device, system or service, including without limitation, any ‘time bomb’, virus, drop dead device, malicious logic, worm, Trojan horse or trap or back door.
27. Damaged or Lost Equipment. You are responsible for all costs associated with repair or replacement of equipment damaged as a result of negligence, abuse, accident, acts of God, acts of third parties, theft, or other loss.
28. Acknowledgement. You understand and agree that:
(a) the Service is an information tool only and is not a substitute for competent management and oversight of your fleet, transportation system, and personnel;
(b) the Service depends upon data being transmitted over the Internet, your network, GPS satellites, and third-party carrier networks, and that we have no control over the functioning of the Internet, your network, GPS satellites, or any carrier’s network, and that all such means are necessarily imprecise and prone to variance; and
(c) You alone are responsible for acquiring and maintaining your fleet, network, Internet access, and your entire physical and technological infrastructure.
Term and Termination
29. Term. This Agreement shall become effective on the date Subscriber accepts these Terms and shall be effective annually or month to month thereafter, as relevant, depending on the terms of your subscription, until terminated (the “Term”).
30. Termination. This Agreement may be terminated as follows:
(a) If Subscriber fails to make any payment due hereunder when due, we may terminate these Terms without written notice to you at any time following the due date. Alternatively, we may suspend Service, with resumption contingent on your making payment in full and complying with any other requirements we may impose with respect to future payments.
(b) If either party materially breaches any term or condition of these Terms and fails to cure such breach within thirty days after receiving written notice of the breach, the non-breaching party may terminate these Terms at any time following the end of such thirty-day period, effective as of the date set forth in the written notice of termination.
(c) This Agreement shall terminate immediately upon notice if either party becomes insolvent or makes an assignment for the benefit of creditors.
(d) We may terminate these Terms at any time for any reason by providing written notice of termination to the Subscriber.
31. Effect of Termination or Expiration. Upon termination or expiration of these Terms for any reason, the Subscriber’s right to access and use the Service automatically terminates. Termination of these Terms does not relieve Subscriber of its obligation to pay monies due us.
32. Survival. Sections 5, 6, 8, 9, 10, 11, 13, 33, 34, 35, 39, 40, 43, 45, 46, and 48 shall survive the termination or expiration of these Terms for any reason.
You agree to defend, indemnify and hold harmless us and our parent and subsidiaries and their respective officers, directors, employees and agents, from and against claims, liabilities, damages and expenses, including reasonable attorneys’ and other professionals’ fees, arising out of or relating to (i) your possession or use of the Stoneridge EZ-ELD®, (ii) your breach of these Terms, (iii) personal injury or property damage caused by the negligence or willful misconduct of you or your employees or agents, or (iv) infringement of any third party’s intellectual property rights by you or your employees or agents. You further agree that you will not seek contribution or indemnification from us nor make any claim against us where either the claim you assert or the contribution and/or indemnification that you seek arises in whole or in part from any of the foregoing acts or conditions set forth in paragraph 35 (i)-(iv). You agree to provide the foregoing indemnification as a material condition and inducement for us to enter into these Terms.
35. Force Majeure. We will not be liable or responsible to you, nor be deemed to have defaulted or breached these Terms, for any failure or delay in our performance under these Terms when and to the extent such failure or delay is caused by or results from acts or circumstances beyond our reasonable control, including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labor disputes (whether or not relating to our workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.
36. Governing Law and Jurisdiction. All matters arising out of or relating to these Terms are governed by and construed in accordance with the internal laws of the State of Michigan without giving effect to any choice or conflict of law provision or rule (whether of the State of Michigan or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Michigan.
37. Waiver of Jury Trials and Binding Arbitration.
(a) YOU AND STONERIDGE AFTERMARKET, INC. ARE AGREEING TO GIVE UP ANY RIGHTS TO LITIGATE CLAIMS IN A COURT OR BEFORE A JURY. OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT MAY ALSO BE UNAVAILABLE OR MAY BE LIMITED IN ARBITRATION.
ANY CLAIM, DISPUTE OR CONTROVERSY (WHETHER IN CONTRACT, TORT OR OTHERWISE, WHETHER PRE-EXISTING, PRESENT OR FUTURE, AND INCLUDING STATUTORY, CONSUMER PROTECTION, COMMON LAW, INTENTIONAL TORT, INJUNCTIVE AND EQUITABLE CLAIMS) BETWEEN YOU AND US ARISING FROM OR RELATING IN ANY WAY TO YOUR PURCHASE OF PRODUCTS OR SERVICES THROUGH THE SITE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION.
(b) The arbitration will be administered by the American Arbitration Association (”AAA”) under its Commercial Arbitration Rules and Mediation Procedures (”Commercial Rules”). The arbitration will be held in Oakland County, Michigan.
The arbitrator will have exclusive authority to resolve any dispute relating to arbitrability and/or enforceability of this arbitration provision, including any unconscionability challenge or any other challenge that the arbitration provision or the agreement is void, voidable or otherwise invalid. The arbitrator will be empowered to grant whatever relief would be available in court under law or in equity. Any award of the arbitrator(s) will be final and binding on each of the parties, and may be entered as a judgment in any court of competent jurisdiction.
If any provision of this arbitration agreement is found unenforceable, the unenforceable provision will be severed and the remaining arbitration terms will be enforced.
38. Assignment. You may not assign any of your rights or delegate any of your obligations under these Terms without our prior written consent. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves you of any of your obligations under these Terms.
39. No Waivers. The failure by us to enforce any right or provision of these Terms will not constitute a waiver of future enforcement of that right or provision. The waiver of any right or provision will be effective only if in writing and signed by a duly authorized representative of Stoneridge Aftermarket, Inc.
40. No Third-Party Beneficiaries. These Terms do not and are not intended to confer any rights or remedies upon any person or entity other than you.
(a) To You. We may provide any notice to you under these Terms by: (i) sending a message to the e-mail address you provide or (ii) posting to the Site. Notices sent by e-mail will be effective when we send the e-mail and notices we provide by posting will be effective upon posting. It is your responsibility to keep your e-mail address current.
(b) To Us. To give us notice under these Terms, you must contact us as follows: (i) by facsimile transmission to (248) 489-3970; or (ii) by personal delivery, overnight courier or registered or certified mail to Stoneridge Aftermarket, Inc., 39675 MacKenzie Drive, Suite 400, Novi, Michigan 48377. We may update the facsimile number or address for notices to us by posting a notice on the Site. Notices provided by personal delivery will be effective immediately. Notices provided by facsimile transmission or overnight courier will be effective one business day after they are sent. Notices provided by registered or certified mail will be effective three business days after they are sent.
42. Severability. If any provision of these Terms is invalid, illegal, void or unenforceable, then that provision will be deemed severed from these Terms and will not affect the validity or enforceability of the remaining provisions of these Terms.
44. Taxes. You shall be liable for all local, state and federal sales, use, withholding, excise, personal property, value-added, or other similar taxes, assessments or duties that may now or hereafter be imposed upon the terms and conditions or that are based on or in any way relating to these Terms, the Stoneridge EZ-ELD® and all other products, Services, and Software license from the Site or any services related thereto, excluding, however, taxes on our income.
When we provide services, we want to make them easy, useful and reliable. This sometimes involves placing small amounts of information on your device, for example, computer, tablet or mobile phone. These include small files known as cookies. They cannot be used to identify you personally.
We use the information we gather to improve the services we provide on the web and ensure the sites we control work properly for our customers. For example:
Recognising that you may already have given us your details so you don’t need to repeat this every time you use the site(s)
Measuring how many people are using the website(s), so the services and information we provide can be made easier to use, to ensure they are working properly
Analysing anonymous statistical data to help us understand how people use our website(s) so we can improve them
There are two types of cookie you may encounter when using our sites:
1. First party cookies: these are our own cookies, controlled by us and used to deliver the sites as you currently see them. They also form part of how the websites work, so many are essential if you want to view the sites properly.
2. Third party cookies: these are cookies found in other companies internet tools which we use. For example, Google own cookies, which are controlled by them.
If you want to delete any cookies you currently have, or change how they are delivered in the future, either click “Help” in your browser menu or visit http://www.aboutcookies.org/.
Should you choose to use the LogMeIn Rescue system, the User assumes all risks associated with the use of this site, including any risk to User’s computer, smartphone, tablet, software or data being damaged by any virus, software, or any other file which might be transmitted or activated or User’s access to it. Stoneridge Electronics shall not in any event be liable for any direct, indirect, punitive, special, incidental, or consequential damages.